Case 3:14-cv-00757-REP-DJN Document 853 Filed 04/13/16 Page 1 of 21 PageID# 43217
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`HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`RICHMOND DIVISION
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`Civil Action No. 3:14-cv-757-REP
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`FILED UNDER SEAL
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`SAMSUNG ELECTRONICS CO., LTD.,
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`Plaintiff,
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`-v.-
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`NVIDIA CORPORATION,
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`Defendant.
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`NVIDIA’S MEMORANDUM IN SUPPORT OF ITS MOTION TO STRIKE THE THIRD
`SUPPLEMENTAL EXPERT REPORT OF DR. JEONGDONG CHOE AND
`PARAGRAPHS 10-13, 18-19, 23-24, 27, 30-31, 36, 42-43, AND 46 OF THE THIRD
`SUPPLEMENTAL EXPERT REPORT OF DR. RICHARD FAIR OR, IN THE
`ALTERNATIVE, ITS MOTION FOR LEAVE TO SERVE A REBUTTAL EXPERT
`REPORT IN RESPONSE
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`
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`

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`Case 3:14-cv-00757-REP-DJN Document 853 Filed 04/13/16 Page 2 of 21 PageID# 43218
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`HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY
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`TABLE OF CONTENTS
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`Page
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`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
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`RELEVANT FACTUAL BACKGROUND ........................................................................3
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`A.
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`B.
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`Dr. Choe’s Expert Reports And The First Trial .......................................................3
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`The “Curative Expert Discovery” Period ................................................................4
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`III.
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`ARGUMENT .......................................................................................................................7
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`A.
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`B.
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`Samsung Violated Rule 26 and the Court’s Consent Order ....................................7
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`The Court Should Strike Dr. Choe’s New Opinions and Documents, As
`Well As The New Opinions of Dr. Fair Relying On Them .....................................8
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`1.
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`2.
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`3.
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`4.
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`5.
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`NVIDIA Has Been Unfairly Surprised ......................................................11
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`There Is No Opportunity To Cure ..............................................................12
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`Allowing Dr. Choe’s Third Supplemental Report Would Disrupt
`Trial ............................................................................................................13
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`Samsung Has Offered No Explanation For The Submission of Dr.
`Choe’s Third Supplemental Expert Report ................................................14
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`Importance Of The Testimony ...................................................................14
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`IV.
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`CONCLUSION ..................................................................................................................15
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`i
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`Case 3:14-cv-00757-REP-DJN Document 853 Filed 04/13/16 Page 3 of 21 PageID# 43219
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`TABLE OF AUTHORITIES
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`CASES
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`PAGE
`
`East West LLC v. Rahman,
`No. 1:11-cv-1380, 2012 WL 4105129 (E.D. Va. Sept. 17, 2012) ................................... 9, 10, 12
`
`Hoyle v. Freightliner, LLC,
`650 F.3d 321 (4th Cir. 2011) ....................................................................................................... 8
`
`Rambus, Inc. v. Infineon Techs. AG,
`145 F. Supp. 2d 721 (E.D. Va. 2001) ........................................................................ 9, 12, 14, 15
`
`Rembrandt Vision Tech. LP v. Johnson & Johnson Vision Care, Inc.,
`725 F.3d 1377 (Fed. Cir. 2013) ................................................................................................. 10
`
`Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
`318 F.3d 592 (4th Cir. 2003) .............................................................................................. passim
`
`Swimways Corp. & VapCreative, Ltd. v. Zuru, Inc.,
`No. 2:13-cv-0034, 2014 U.S. Dist. LEXIS 101663 (E.D. Va. July 10, 2014) .................... 12, 13
`
`Wilkins v. Montgomery,
`751 F.3d 214 (4th Cir. 2014) ..................................................................................................... 10
`
`RULES
`
`
`Fed. R. Civ. P. 16(f)(1)(6)............................................................................................................... 9
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`Fed. R. Civ. P. 26(a)(2)(B)(i) ........................................................................................................ 11
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`Fed. R. Civ. P. 37(c)(1) ................................................................................................................8, 9
`
`
`
`ii
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`Defendant NVIDIA Corporation (“NVIDIA”) respectfully moves to strike the Third
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`Supplemental Report of Dr. Jeongdong Choe, and paragraphs 10-13, 18-19, 23-24, 27, 30-31, 36,
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`42-43, and 46 of the Third Supplemental Report of Dr. Richard Fair, which rely on Dr. Choe’s
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`Third Supplemental Report or offer a never before disclosed infringement theory. They are
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`beyond the scope of the Court’s February 23, 2016 Consent Order and there is no basis under the
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`Federal Rules to permit them.
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`I.
`
`INTRODUCTION
`
`The Court ordered a mistrial because Samsung’s failed to comply with its disclosure
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`obligations under Rule 26, and determined that Samsung should not benefit because of the
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`mistrial it created. (Dkt. No. 829, Memorandum Opinion at 24 (“As such, the final sanction in
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`this case must leave Samsung worse off than it would have been had it properly disclosed [in
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`discovery all materials its expert relied on to form his opinion].”).)
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`To mitigate the harm imposed on NVIDIA by Samsung expert Dr. Choe’s failure to
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`disclose all of the images and materials relied on to form his opinions, the Court ordered Dr.
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`Choe to submit a “limited” supplemental report “identifying all images and materials that he
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`relied upon” to form his original opinions. (Dkt. No. 821 at 2.) But instead of mitigating the
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`harm it already has caused, Samsung’s latest round of expert reports abuses the Court’s “curative
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`discovery period” by attempting to inject new and previously undisclosed opinions and
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`documents into this case.
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`On March 1, 2016, Samsung served Dr. Choe’s Second Supplemental Report in which
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`Dr. Choe was required, by the Consent Order (id.), to identify “all images and materials” Dr.
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`Choe relied on in forming his opinions disclosed in his September and October 2015 reports. Dr.
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`Choe failed to do so. More than one month later on April 5, 2016, Samsung served Dr. Choe’s
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`1
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`Case 3:14-cv-00757-REP-DJN Document 853 Filed 04/13/16 Page 5 of 21 PageID# 43221
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`Third Supplemental Report. This report, which was not authorized by the Consent Order (id.),
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`identified for the first time new documents and new expert opinions regarding the work
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`described in Dr. Choe’s September and October 2015 reports. On April 5, Samsung also served
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`a supplemental report from Dr. Fair, who opines that NVIDIA infringes based on Dr. Choe’s
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`newly disclosed opinions and documents.
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`
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`These new and untimely opinions should be troubling to the Court, and are anything but a
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`trifling violation of the rules and procedures in this case. They go to the heart of NVIDIA’s non-
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`infringement defense. This Court has recognized that “[t]he presence of
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`
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` is an important aspect of NVIDIA’s non-infringement defense in this case.”
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`(Dkt No. 829 at 5.) In his Third Supplemental Report, served less than a month before the retrial
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`begins, Dr. Choe opines for the first time that – contrary to what is set forth in his September
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`2015 Opening Report – there is no
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`
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` But Samsung has known about this “false detection” problem since at least the
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`January trial, long before it served Dr. Choe’s March 1 report. (See Ex. B, Apr. 11, 2016 Fair
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`Dep. Tr. (Rough) at 42:3-7.) Similarly, realizing that none of the data supports Dr. Choe’s
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`conclusions about material composition, Dr. Fair opines for the first time that the layer labeled
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` and therefore is a “different metal.” Samsung’s
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`submissions aggravate, rather than mitigate, the damage it already has imposed.
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`Samsung and Dr. Choe could have, and should have, disclosed these new documents and
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`new opinions last year, during the original expert discovery period. Samsung and Dr. Choe
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`could have, and should have, disclosed at least the new documents in the Second Supplemental
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`Report because the Court’s Order (Dkt. No. 821) required them to “identify[] all images and
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`2
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`materials … relied upon to form the opinions disclosed in his September 18, 2015 and October 2,
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`2015 reports.” (Id. at 2.) But there is no colorable excuse for Samsung and Dr. Choe to have
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`disclosed these new documents and new opinions for the first time in Dr. Choe’s Third
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`Supplemental Report. These new opinions and documents violate the Consent Order and flout
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`the Rule 26(a)(2) obligations imposed by that Order. (Id. at 1.)
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`Samsung was ordered to provide “curative expert discovery” to mitigate the effects of its
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`prior misconduct that caused the mistrial. Samsung’s latest conduct does just the opposite. The
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`Third Supplemental Report of Dr. Choe, and paragraphs 10-13, 18-19, 23-24, 27, 30-31, 36, 42-
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`43, and 46 of the Third Supplemental Report of Dr. Richard Fair which rely upon that report or
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`offer new opinions, must be struck.
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`II.
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`RELEVANT FACTUAL BACKGROUND
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`A.
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`Dr. Choe’s Expert Reports And The First Trial
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`On September 18, 2015, Samsung submitted the Opening Expert Report of Dr.
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`Jeongdong Choe of TechInsights on the issue of infringement. Dr. Choe’s Opening Expert
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`Report included thirteen reverse engineering reports, each pertaining to an accused NVIDIA
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`chip, that Dr. Choe reviewed or prepared. On October 2, 2015, Samsung submitted Dr. Choe’s
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`Supplemental Expert Report on the infringement issue, which included two additional reverse
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`engineering reports.
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`At the January trial, Dr. Choe admitted that certain conclusions were inconsistent with
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`the data in his expert reports because “we look at multiple EDSs and multiple analysis that is
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`done on a sample.” (Dkt. No. 797, Jan. 28, 2016 Tr. at 505:18-506:15.) Dr. Choe then admitted
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`that he failed to disclose all the material he relied upon in reaching his expert opinions on
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`infringement. (Dkt. No. 829 at 4.) Accordingly, on January 29, 2016, the Court ordered
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`Samsung to produce the previously undisclosed material supporting Dr. Choe’s expert opinions.
`3
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`Samsung purported to comply by producing approximately 5,000 files from Dr. Choe’s company
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`TechInsights by February 11, 2016. None of those files indicate that
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`.
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`NVIDIA also moved to strike Dr. Choe’s expert reports and testimony under Rule 37.
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`(Dkt. No. 744.) The Court granted NVIDIA’s motion in part, and declared a mistrial as to the
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`’902 and ’675 patents “in order to provide sufficient time during which NVIDIA Corporation
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`might engage in curative expert discovery.” (Dkt. No. 829 at 1.)
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`B.
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`The “Curative Expert Discovery” Period
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`On February 8, the Court held a telephonic conference regarding the schedule for curative
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`expert reports and depositions. NVIDIA informed the Court that Samsung may try to submit
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`more than one supplemental report from Dr. Choe:
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`They want to retain the option of submitting another report from Dr. Choe. We,
`in principle, disagree with that, but we’re going to table that issue until we see
`whether or not Dr. Choe actually submits anything. If he does, we may object to
`it, but we don’t need to decide that today.
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`(Dkt. No. 804, Feb. 18, 2015 Tr. at 4:3-7.) The Court then instructed Samsung that Dr. Choe’s
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`supplemental report should be limited to identifying the “images and materials” that he relied on
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`in reaching the opinions disclosed in his original reports:
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`Why don’t you have Choe do his report and confined to just identifying those
`images and materials that he relied on in reaching his judgments that are in his
`original report. That wouldn’t change the original report, but it would flesh out
`what he relied on, and get that in on the 1st of March.
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`(Id. at 16:11-16; see also id. at 14:12-15:1.) Samsung has recognized the limited scope of the
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`curative expert discovery period:
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`This additional time before the new trial was not intended as an invitation for the
`parties to rework their cases or reargue issues that have already been decided.
`Rather, this time was solely to allow the parties to address any limited issues that
`may arise as a result of material recently produced by TechInsights. NVIDIA,
`thus, seeks a windfall beyond the relief already granted by the Court.
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`. . .
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`4
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`The new date for trial of the ’675 and ’902 Patents has not reopened general
`discovery. Rather, as noted above, the additional time was intended solely to
`address issues raised by the TechInsights material that had not been produced.
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` (Dkt. No. 819 at 3-4 (emphasis in original); see also id. at 9.) On February 23, 2016, the Court
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`issued a Consent Order setting forth, inter alia, the schedule for these supplemental Rule
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`26(a)(2) Disclosures. (Dkt. No. 821.) The Consent Order reiterated the Court’s instruction given
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`during the February 8 teleconference:
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`Dr. Jeongdong Choe to submit a supplemental report limited to identifying all
`images and materials that he relied upon to form the opinions disclosed in his
`September 18, 2015 and October 2, 2015 reports that were not previously
`identified in those reports, and identifying the portions of his report to which
`those images and materials relate.
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`(Id. at 2.). The Consent Order also provided that: (1) Dr. Lee would, by March 14, 2016,
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`“submit a supplemental report limited to issues of non-infringement raised by the information
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`and files TechInsights produced on or after January 29, 2016,” and (2) Dr. Fair would, by April
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`5, “submit a rebuttal report limited to issues raised in Dr. Lee’s March 14, 2016 report.” (Id.)
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`In the Consent Order, Samsung reserved “the right to submit a rebuttal report for Dr.
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`Jeongdong Choe limited to issues raised in Dr. Lee’s March 14, 2016 report.” (Id.)
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`Accordingly, NVIDIA “reserve[d] the right to object to the rebuttal report of Dr. Choe.” (Id.)
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`On March 1, 2016, Samsung served Dr. Choe’s Second Supplemental Report which was
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`supposed to “identify[] all images and materials that he relied upon to form the opinions
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`disclosed in his September 18, 2015 and October 2, 2015 reports that were not previously
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`identified in those reports.” (Id.)
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`After NVIDIA timely served Dr. Lee’s Supplemental Report, counsel for Samsung
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`informed NVIDIA that Dr. Choe would submit another expert report. (Ex. C, Mar. 17, 2016
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`Pensabene email to Naples.) On April 5, 2016, Samsung served Dr. Choe’s Third Supplemental
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`5
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`Report, and produced the new documents discussed above. (See Ex. D, SAMS-NVD-0198653–
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`668.)
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`In his Third Supplement Report, Dr. Choe also offered new and highly technical expert
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`opinions that allegedly are supported by the newly produced documents. Dr. Choe opines (for
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`the first time) that the
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` of NVIDIA’s products is a “false
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`detection” caused by the presence of other elements. (Ex. A at ¶ 7.) Dr. Choe also opines (for
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`the first time) that the
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` indicates that a small amount of
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` and was not actually deposited. (Id. at ¶ 18.) Dr. Choe
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`also opines (for the first time) that the labels for each layer identified in his prior reports only
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`indicate the “major constituent materials,” and that “the existence of small amounts of other
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`materials” may exist in the layer. (Id. at ¶ 20.)
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`Although Dr. Choe did not disclose his “false detection” opinion in his March 1 report,
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`Dr. Fair testified during his April 11, 2016 deposition that he learned of the “false detection”
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`problem during the January trial:
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`Q: When did you first become aware of the false detection problem related to
`in Dr. Choe’s reverse engineering reports?
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`A: Well, that would have been at trial in Richmond during his testimony.
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` (Ex. B, Apr. 11, 2016 Fair Dep. Tr. (Rough) at 42:3-7.)
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`In his Third Supplemental Report, Dr. Fair relies upon Dr. Choe’s newly disclosed
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`opinions about the
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` and opines (for the first time) that there is actually
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` (Ex. E at ¶ 19.)
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`These new opinions are not trivial matters. They are aimed at NVIDIA’s core non-
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`infringement defense that the accused third metal gate electrode layer and upper metal gate
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`electrode do not comprise “different metals.” As this Court recognized, “[t]he
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`6
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`Case 3:14-cv-00757-REP-DJN Document 853 Filed 04/13/16 Page 10 of 21 PageID# 43226
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` is an important aspect of NVIDIA’s non-infringement defense
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`in this case.” (Dkt. No. 829 at 5.) That is the battlefield on which this case has been fought. But
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`in his Third Supplemental Report, Dr. Choe opines for the first time that contrary to what is
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`stated in his 2015 Opening Report, there is
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` of the accused
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`products because, supposedly, the signal showing the
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` in that layer is a “false”
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`detection.
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`III. ARGUMENT
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`A.
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`Samsung Violated Rule 26 and the Court’s Consent Order
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`Federal Rule of Civil Procedure 26(a)(2)(B)(i) required Dr. Choe to provide an expert
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`report that contains “a complete statement of all opinions the witness will express and the basis
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`and reasons for them.” The Consent Order required Dr. Choe to “submit a supplemental report”
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`by March 1, 2016, “limited to identifying all images and materials that he relied upon to form
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`the opinions disclosed in his September 18, 2015 and October 2, 2015 reports that were not
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`previously identified in those reports.” (Dkt. No. 821 at 2.) Dr. Choe’s Third Supplemental
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`Report does not comply with the Consent Order or Rule 26.
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`Instead, Dr. Choe’s Third Supplemental Report violates the Consent Order and Federal
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`Rules. The Consent Order specifically instructed Dr. Choe to submit a supplemental report by
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`March 1 to disclose “all images and material” that he relied upon to form his original opinions.
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`(Id.) Dr. Choe submitted a Second Supplemental Report on March 1. But it did not identify all
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`of the images and material he relied upon. Samsung hid that material until April 5, when it
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`served Dr. Choe’s unauthorized Third Supplemental Report. The Third Report includes new
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`documents (that were never previously identified) used to support new technical opinions (that
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`were never previously disclosed) regarding the “false detection” of
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`in certain layers and
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`the alleged
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`
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` from adjacent layers. (Ex. A at ¶¶ 7, 18.) Dr. Choe also opines
`7
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`(for the first time) that the labels for each layer only denote the “major constituent materials,”
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`and that small amounts of other materials may exist in certain layers. (Id. at ¶ 20.) These new
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`documents and opinions are “images and material” he relied upon, and thus had to be disclosed
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`on March 1. They were not. Worse yet, there is no reason that Samsung and Dr. Choe could not
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`have disclosed these new documents and opinions last Fall during the original expert discovery
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`period.
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`The new documents and new opinions could have, and should have, been disclosed last
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`Fall in Dr. Choe’s Opening or Supplemental Report. At the very latest, they should have been
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`disclosed in Dr. Choe’s Second Supplemental Report.
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`Samsung’s untimely disclosure of Dr. Choe’s new documents and opinions violates Rule
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`26(a)(2)(B)(i) and the Consent Order.
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`B.
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`The Court Should Strike Dr. Choe’s New Opinions and Documents, As Well
`As The New Opinions of Dr. Fair Relying On Them
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`The Court’s Consent Order allowed for a curative discovery period requiring additional
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`expert disclosures governed by Rule 26. Federal Rule of Civil Procedure 37(c)(1) provides that
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`“[i]f a party fails to provide information or to identify a witness as required by Rule 26(a) or (e),
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`the party is not allowed to use that information or witness to supply evidence on a motion, at a
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`hearing, or at a trial, unless the failure is substantially justified or is harmless.” “[T]he
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`‘automatic sanction’ of exclusion ‘provides a strong inducement for disclosure of material that
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`the disclosing party would expect to use as evidence.’” Hoyle v. Freightliner, LLC, 650 F.3d
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`321, 329 (4th Cir. 2011) (citation omitted)). Accordingly, a party that fails to provide
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`information as required by Rule 26(a) may only escape the automatic sanction by showing that
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`its “failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Rule 37(c)(1)
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`does not require a finding of bad faith or callous disregard of the discovery rules.” Southern
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`8
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`States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003)
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`(adopting the analysis from Rambus, Inc. v. Infineon Techs. AG, 145 F. Supp. 2d 721, 726 (E.D.
`
`Va. 2001)).
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`The Court may also strike the Third Supplemental Reports of Dr. Choe and Dr. Fair
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`under Federal Rule of Civil Procedure 16(f), which “pertains to sanctions and specifically speaks
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`to noncompliance with a scheduling order or pretrial order.” East West LLC v. Rahman, No.
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`1:11-cv-1380, 2012 WL 4105129, at *7 (E.D. Va. Sept. 17, 2012). Rule 16(f)(1)(6) states: “On
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`motion or on its own, the court may issue any just orders, including those authorized by Rule
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`37(b)(2)(A)(ii)-(vii), if a party or its attorney … (c) fails to obey a scheduling or other pretrial
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`order.” This Court, and others in the Fourth Circuit, have struck untimely supplemental expert
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`reports under Rule 16(f). See Rambus, 145 F. Supp. 2d at 736 (granting motion to exclude
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`untimely supplemental report and testimony under Rule 16(f) and 37(c)(1)); see also East West,
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`2012 WL 4105129, at *6 (precluding untimely supplemental report that was not “true
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`supplementation,” but rather was an unauthorized rebuttal to opposing party’s expert). This
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`Court has also recognized that “[t]he factors to be considered under [Rule 16(f)] are substantially
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`the same as those considered under Rule 37(c)(1).” Rambus, 145 F. Supp. 2d at 736; accord
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`East West, 2012 WL 4105129, at *6 (“[T]he Southern States [test] … for purposes of Rule 37(c)
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`exclusion analysis, is a verbatim recitation of the [Rule 16(f) test].”).
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`In the Fourth Circuit, courts determine whether a failure to timely disclose expert
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`opinions and documents was “substantially justified” or “harmless” by examining five factors:
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`(1) the surprise to the party against whom the witness was to have testified;
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`(2) the ability of the party to cure that surprise;
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`(3) the extent to which allowing the testimony would disrupt the trial;
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`9
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`(4) the explanation for the party's failure to name the witness before trial; and
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`(5) the importance of the testimony.
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`Southern States, 318 F.3d at 596-97. The burden of establishing these five factors lies with the
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`party facing sanctions. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). Here,
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`Samsung bears that burden.
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`District courts have broad discretion to exclude untimely supplemental expert opinions
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`where a party violates Rule 26 by failing to comply with disclosure deadlines. See, e.g., East
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`West, 2012 WL 4105129, at *7 (precluding untimely supplemental report that was not “true
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`supplementation,” but rather was an unauthorized rebuttal to opposing party’s expert). For
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`example, in Rembrandt Vision Tech. LP v. Johnson & Johnson Vision Care, Inc., the trial court
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`granted defendant’s motion to strike where the plaintiff’s expert, when pressed during cross-
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`examination, “suddenly changed course” and testified about a methodology that was not
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`disclosed in his expert report. 725 F.3d 1377, 1380 (Fed. Cir. 2013). The Federal Circuit
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`affirmed, agreeing with the trial court that “[t]here is simply no excuse for [the expert] waiting
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`until cross-examination to disclose his testing procedures,” and that it was not “substantially
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`justified or harmless” for the expert to “wait until trial to disclose the testing methodology that he
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`claims he actually employed.” Id. at 1382. The Federal Circuit also rejected the plaintiff’s
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`argument that its late disclosure was “unintended,” “caused no harm,” and was reliable because it
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`followed industry standards, because defendants “prepared its noninfringement defense based on
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`the methodology disclosed in [the original] expert report” and “[s]uch a late change in course
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`significantly hampered [defendant’s] ability to adequately cross-examine [the expert] and denied
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`it the opportunity to develop or introduce competing evidence.” Id. at 1381.
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`HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY
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`The same result follows here. Application of the Southern States five-factor test compels
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`exclusion of Dr. Choe’s Third Supplemental Report.1
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`1.
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`NVIDIA Has Been Unfairly Surprised
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`NVIDIA has been unfairly surprised by the late disclosure of the new opinions contained
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`in Dr. Choe’s Third Supplemental Report.
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`Samsung was obligated to include “a complete statement of all opinions [Dr. Choe] will
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`express and the basis and reasons for them” in Dr. Choe’s Opening Report last September. Fed.
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`R. Civ. P. 26(a)(2)(B)(i). Samsung did not comply. The Court gave Samsung an opportunity to
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`mitigate the effect of its non-compliance by allowing NVIDIA “to engage in curative discovery”
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`and requiring Dr. Choe to file a supplemental report on March 1 “identifying the images and
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`materials” he relied on to form his original opinions. (Dkt. No. 821 at 2.) Samsung agreed with
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`the limited scope of the curative discovery: “[t]he new date for trial of the ’675 and ’902 Patents
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`has not reopened general discovery . . . the additional time was intended solely to address issues
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`raised by the TechInsights material that had not been produced.” (Dkt. No. 819 at 4.) Thus, on
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`March 14, 2016, when NVIDIA timely-disclosed Dr. Lee’s Supplemental Report responding to
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`Dr. Choe’s March 1 Second Supplemental Report, it did so with the reasonable belief that in the
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`Second Supplemental Report, Samsung and Dr. Choe had complied with Rule 26 and the
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`Consent Order. NVIDIA had no reason to believe that Samsung and Dr. Choe would thereafter
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`disclose brand new opinions and documents, much less ones aimed at the root of NVIDIA’s non-
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`infringement defense.
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`Samsung may claim that there is no surprise because it reserved the “right” to submit a
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`rebuttal report in the Consent Order. Samsung would be wrong for two reasons. First, the Court
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`1 NVIDIA seeks only to preclude (i) Dr. Choe from testifying regarding the new opinions and
`documents untimely disclosed in his Third Supplemental Report, and (ii) Dr. Fair’s proposed
`testimony relying on these new Choe opinions and documents.
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`expressly limited the scope of Dr. Choe’s supplemental report to “identifying all the images and
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`materials [Dr. Choe] relied on.” (Id.) Thus, even if permitted to file a Third Supplemental
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`Report, Dr. Choe and Samsung were not allowed to go beyond this scope by including new
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`opinions and documents. See East West, 2012 WL 4105129, at *7 (“Simply giving notice to
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`Plaintiffs that Defendants intend [to] ‘produce a Supplemental Report’ does not necessarily put
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`the Plaintiff on notice that this report will contain new opinions and analysis of the sort that
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`are contained in Defendants’ ‘Supplemental’ Report.”) (emphasis added).
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`Second, NVIDIA could not reasonably anticipate that Samsung would attempt
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`unilaterally to “control[] the timing of expert disclosures” merely by reserving the “right” to
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`serve a supplemental report. See Rambus, 145 F. Supp. 2d at 728 (finding surprise because “the
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`unilateral action of a party cannot alter the schedule on which the substantive Rule 26(a)(2)
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`disclosures are to be made”). In short, “[t]he unilateral assertion of a ‘reservation of rights,’ on
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`which [Samsung] fastens its justification of Dr. [Choe’s] belated report, simply is of no effect.”
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`Id. NVIDIA was surprised.
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`2.
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`There Is No Opportunity To Cure
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`With trial less than a month away, NVIDIA does not have a fair opportunity to cure the
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`prejudice arising from Samsung’s untimely disclosure of Dr. Choe’s new opinions. The Consent
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`Order does not give NVIDIA any meaningful opportunity to investigate, and respond to, Dr.
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`Choe and Dr. Fair’s new opinions. At this late stage, NVIDIA “should not have to expend
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`additional resources in response to an unauthorized disclosure of new evidence.”2 Swimways
`
`
`2 But at the very least, Samsung cannot be permitted to use its late disclosure of Dr. Choe’s
`opinions to deny NVIDIA the opportunity to develop or introduce competing evidence.
`Accordingly, NVIDIA respectfully alternatively requests leave to serve a rebuttal report from
`its technical expert, Dr. Lee, to address the new opinions disclosed by Dr. Choe and Dr. Fair
`in their Third Supplemental Reports. Should the Court grant NVIDIA’s motion to strike,
`NVIDIA’s alternative request for leave to serve a rebuttal report would be moot.
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`Corp. & VapCreative, Ltd. v. Zuru, Inc., No. 2:13-cv-0034, 2014 U.S. Dist. LEXIS 101663, at
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`*11-12 (E.D. Va. July 10, 2014).
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`3.
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`Allowing Dr. Choe’s Third Supplemental Report Would Disrupt Trial
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`The Court instructed the parties that “[t]he keystone of an efficient trial is preparation and
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`preparation for this trial has been underway for some time.” (Dkt. No. 735 at 5.) Samsung’s
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`prior misconduct in failing disclose thousands of pages of data and analyses Dr. Choe relied on
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`to form his opinions already created a major disruption: a mistrial. Samsung should not be
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`allowed to cause further disruption, especially because the disruption would prejudice NVIDIA
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`and thus inure to Samsung’s benefit.
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`More specifically, allowing Dr. Choe’s Third Supplemental Report would prejudicially
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`disrupt NVIDIA’s trial preparations. NVIDIA has been preparing its non-infringement defense
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`based on the opinions Dr. Choe presented in his three previous expert reports (and Dr. Fair’s
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`opinions that are based thereon). As this Court has recognized, “[t]he presence of s
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`
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` layer is an important aspect of NVIDIA’s non-infringement defense in this case.”
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`(Dkt. No. 829 at 5.) The
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` is documented repeatedly in Dr. Choe’s September
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`2015 Opening Report. Yet in his Third Supplemental Report, Dr. Choe opines for the first time
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`that, contrary to what is set forth in his Opening Report, there is
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` of the accused products because supposedly, the signal showing the
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`
`
` in
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`that layer is a false detection. Dr. Fair similarly opines for the first time about the presence of
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`
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`Allowing Samsung to introduce Dr. Choe’s and Dr. Fair’s brand new opinions would
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`require NVIDIA to reformulate its defenses to address this new “false” detection opinion and the
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`never-before disclosed “metals,” and to do so on very short notice, thus taking valuable time and
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`resources away from the trial preparation already underway. This trial should move forward
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